- (1.)THIS petition is directed against the order of detention dated 12th January, 1990 passed by the respondent No. 2, the Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, (Special) Mantralaya, Bombay, in exercise of the power under sub-section (1) of section 3 of the Conservation of Foreign Exchange And Prevention of Smuggling Activities Act. 1974 (Act No. 52 of 1974 ). (hereinafter referred to as "the Cofeposa) The first ground of challenge as formulated by Shri Maqsood Khan, the learned Counsel appearing for the petitioner, is that the absence of cogent and sufficient material indicative of the likelihood either of the petitioner being released on bail or thereupon his indulging in the activity of smuggling goods, has vitiated the subjective satisfaction as reached by the detaining authority. To fortify this ground, it is pointed out that the detenu reached Bombay from Dubai on 2-8-1989. He was arrested under section 104 of the Customs Act and was then sent to judical custody. It is pointed out that since then he has been in the judicial custody and continued to be so even on the date when the impugned order of detention was served on him on 2-2-1990. It is, therefore, urged that the activities of the petitioner since in the Custody have been sufficiently prohibited. He has not applied for grant of bail. Moreover, he did not take any step to obtain the relief of grant of bail. As such, there is nothing on record which can be a basis for the presumption of his likelihood of being released on bail. Another limb of the same argument of the learned Counsel is that there was no previous history or antecedents indicating the prejudicial or objectionable activity of the petitioner excepting the incident dated 2-8-1989, to indicate any compelling reason justifying the detention of the petitioner. Mr. Maqsood Khan, therefore, made a submission that the detaining authority has not possessed the material suggesting the probability as recorded in the grounds of detention dated 12-1-1990.
(2.)IN support of this submission, the learned Counsel placed reliance on the Judgements Today page 184 (Dharamendra v. Union of India) particularly on the observation made by the Supreme Court in para 21 of the Report. It is pointed out that the order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention, and (ii) that there were compelling reasons justifying such detention despite the fact that detenu is already in detention. The Supreme Court further observed that the expression, "compelling reasons" in the context of making order of detention of as person already in custody implies that there must be a cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of antedecents and activities of the detenu, it is likely that after his release from custody, he would indulge in prejudicial activities. (emphasis supplied ). In view of the observation, we propose to examine the substance of the ground as contained in Grounds of Detention dated 12-1-1990. The detaining authority at page 21 has made as mention "though you are still in judicial custody, I am satisfied that there is a compelling necessity to detain you under the Cofeposa Act to prevent you from smuggling goods in future a you are likely to be granted bail under the normal law at any time". Applying the test laid down by the Supreme Court in the case cited supra, the detaining authority has satisfied the first test regarding the awareness of the person in the judicial custody. Now, we propose to examine whether there were material sufficient and cogent indicating compelling reasons to pass the order of detention.
(3.)AS urged before us by the learned Counsel there was no such material to draw an inference that the petitioner was likely to be released on bail. In the absence of such material, the presumption is without any foundation which results in vitiating the order of detention. In support of this proposition, the learned counsel placed reliance on the decision rendered by this Court in Criminal Writ Petition No. 154 of 1989 dated 22-8-1989, Criminal Writ Petition No. 231/1990 dated 24-4-1990. Criminal Writ Petition No. 55/1990, dated 21-3-1990. The learned Counsel in furtherance of his submission contended before us that the relevant material in this regard could be filling of application or pendency of such application for grant of bail or any other attempt legally permissible for a person to secure the order of release on bail. Since neither there was a pending application nor there was any attempt suggestive of a securing the relief of bail, the detaining authority erroneously reached a conclusion that the petitioner is likely to be released on bail. We have in great detail examined the submission as made. It is hardly debatable that the aim and object of the Cofeposa Act is preventive in nature. It is also legally acknowledged that the provisions under the common law are not sufficient to check the menace which has been undertaken by the Act. If the submission as canvassed is accepted, then the Sponsoring Authority, namely, the Officers of the Customs Department could initiate the proposal for detection of person in custody only when such application for grant of bail is made. This would lead to defeating the object of the Act. Besides this, the process of detention which is being initiated by the Department of Custom and ultimately culminates in passing order of detention by the authorities specified under the Act involves certain stages, obligations and is also time consuming. In these circumstances, making the Sponsoring Authority to wait till such application is moved, according to us, would not be either rationale or logical.